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WHITE v. COMMONWEALTH (54518)



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WHITE

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

DECEMBER 21, 1999

Record No. 1086-98-2

ALONZO LYNDELL WHITE

v.

COMMONWEALTH OF VIRGINIA

Present: Judges Elder, Lemons and Senior Judge
Cole

Argued at Richmond, Virginia

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge

Brent A. Jackson (Jackson, Pickus &
Associates, on brief), for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief), for

appellee.

MEMORANDUM OPINION[1] BY JUDGE DONALD W. LEMONS


Alonzo Lyndell White appeals his conviction
after a jury trial in the Circuit Court of the City of Richmond
of malicious wounding and use of a firearm during the commission
of malicious wounding. White alleges that the trial judge should
have declared a mistrial because of circumstances that arose
during closing arguments to the jury and further alleges that the
evidence was insufficient to sustain the verdict. Finding no
error, we affirm the convictions.

During closing arguments in the guilt or
innocence phase of the bifurcated felony trial before a jury,
counsel for White suggested that the reason the Commonwealth did
not call Lamar Crews as a witness was because "Crews could
not corroborate not [sic] one part of Daryl Jones’
testimony." The assistant Commonwealth’s attorney
interrupted defense counsel’s closing argument and declared,
"That’s a lie." The assistant Commonwealth’s attorney
requested the opportunity "to reopen the case and call Lamar
Crews as my witness." The trial judge initially indicated
his willingness to grant the motion, and White objected saying,
"I think this scenario is appropriate for a mistrial in
light of the fact that we are going outside of the confines of
proper structure here." The trial judge did not treat
defense counsel’s declaration as a motion for a mistrial and did
not grant or deny the purported motion. However, upon discovery
that Lamar Crews had been present in the courtroom during defense
counsel’s closing argument, the trial judge denied the
Commonwealth’s motion to reopen the evidence.

Assuming without deciding that counsel’s
declaration was sufficient to constitute a motion for a mistrial,
the basis of counsel’s stated concern was the Commonwealth’s
motion to "reopen the evidence." The trial judge did
not permit the Commonwealth to reopen the evidence; consequently,
the record does not support the stated basis for a mistrial.

After closing arguments and after the jury
retired to deliberate, the following colloquy occurred:

[COUNSEL]: Your Honor, I want
to renew my motion at the end of the
Commonwealth’s case in chief.

THE COURT: Let it show he made
a motion to strike the Commonwealth’s evidence
and the Court overruled it, at the conclusion of
the Commonwealth’s case and also at the
conclusion of all the evidence.

[COUNSEL]: Also, Your Honor, I
think what is appropriate at this time is a
mistrial, in light of the fact that after the
defense was up there arguing the closing
arguments, that the Commonwealth, in rebuttal,
attempted to bring on a witness which had been in
observance of my argument.

THE COURT: Well, you could have
called the witness.

[COUNSEL]: I understand that,
Your Honor.

THE COURT: All right. I heard
the motion. I overrule it.

[COUNSEL]: I feel that in light
of the Commonwealth’s actions he has unduly
prejudiced the defendant in light of the fact
that he pulled him up at the last moment,
attempted to bring – -

THE COURT: I ruled on it.

[COUNSEL]: I beg your pardon?

THE COURT: I ruled on it.

[COUNSEL]: I understand.

THE COURT: All right. Thank
you. We will wait for the jury. All right.

The trial judge treated counsel’s statement as
a motion for a mistrial and overruled it. To the extent that the
motion simply restated an objection to "reopening the
evidence," it was properly denied because the trial judge
did not reopen the evidence.

However, for the first time White injects a
claim that "the Commonwealth’s actions" "unduly
prejudiced the defendant." Presumably, this claim relates to
the jury being exposed to the efforts of the Commonwealth to call
the witness and the colloquy that occurred between counsel and
between counsel and the trial judge. His motion was untimely.

[I]f a defendant wishes to take
advantage on appeal of some incident he regards
as objectionable enough to warrant a mistrial, he
must make his motion timely or else be deemed to
have waived his objection. Making a timely motion
for mistrial means making the motion "when
objectionable words were spoken."

Yeatts v. Commonwealth, 242 Va. 121,
137, 410 S.E.2d 254, 264

(1991) (citations omitted).

Finally, White maintains that the evidence was
insufficient to support his convictions. At no time, either at
the end of the Commonwealth’s case in chief or at the conclusion
of all of the evidence, did White state a specific reason why the
evidence was insufficient. When considering sufficiency arguments
on appeal, only specific objections advanced at trial will be
considered. See George v. Commonwealth, 242 Va. 64,
281 n.4, 411 S.E.2d 12, 22 n.4 (1991). See Rule 5A:18; see
also Buck v. Commonwealth, 247 Va. 449, 452-53, 443
S.E.2d 414, 416 (1994).

For the reasons stated above, the convictions
are affirmed.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code ? 17.1-413, recodifying Code
? 17-116.010, this opinion is not designated for
publication.

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